1. CH. IJAZ AHMAD, J.--- The brief facts out of which this petition arises are that the petitioner's son namely Muhammad Ayaz Baluch was arrested by the respondents front his residence on 28-4- 1997 and is in custody of Pakistan Air Force. He was produced before the Magistrate lst Class.
2. Islamabad, on 3-5-1997 by the respondents and his statement under section 164 Cr.P.C, was recorded. Under the provisions of Pakistan Air Force Act and Rules, competent Authority constituted a Field General Court Martial for the purpose of trial of the petitioner's son.
3. It is pertinent to mention here that the petitioner's son was supplied copies of the summary evidence on 4th of August. 1997. And subsequently on 18-8-1997. The following charge was framed:- " Endeavouring to seduce a person in the Pakistan Air Force front his duty to the Government, in that he. At Islamabad in January.
4. 1997. By paying Sqn. Ldr. Qasim Bhatti Pak/9066. GD(Pt. An officer of the Pakistan Air Force an amount of $. 4900/- for the purchase and transportation of Narcotic Drug out of Pakistan, endeavouring to seduce the said Squadron Leader Qasim Bhatti from his duty to the Government."
5. The petitioner's son challenged the jurisdiction of the Field General Court Martial regarding commencement of the trial which was rejected.
6. The other relevant facts on the basis of which the petitioner's son was arrested are that Squadron Leader Qasim Bhatti travelled to U.S.A, in the month of October. 1996. In service Aircraft. He took one kilogram of heroin on the said Aircraft and handed over the same to his cousin namely Tahir Bhatti.
7. Qasim Bhatti informed his cousin to sell the said heroin to a buyer. Tahir Bhatti contacted one Habib for the said purpose. Subsequently, the aforesaid Squadron Leader himself met Habib and informed him that he had already handed over one kilogram of heroin to his cousin Tahir Bhatti and he should collect the same from him for the purpose of selling. On 2-11-1996. Sqn. Ldr. Qasim Bhatti returned to Pakistan. On 15-11-1996. Tahir Bhatti and Habib met a person namely Mike without knowing that he is an officer Agent of DEA. In the month of January. 1997. The petitioner's son met Qasim Bhatti in the Marriot Hotel and paid the amount in question to him.
8. 2 The petitioner has filed the present writ petition against the action of the respondents with the following prayers:- It is. Therefore, most respectfully prayed that the charge framed against the petitioner's son under section 37 of Pakistan Air Force Act. 1953. May graciously be declared as without lawful authority and a direction may be issued to the concerned Field General Court Matrtial not to hold the trial against the petitioner's son under the said charge.
9. It is further prayed that the petitioner's son being absolutely innocent and being a Civilian and not being subject to the Pakistan Air Force Act. Should be set at liberty.
10. Any other relief which in the circumstances and facts of this case may be deemed fit and proper may also kindly be granted to the petitioner's son.
3. Learned counsel for the petitioner contended that the petitioner's son has not committed any offence, the charge framed at the most, without conceding that the petitioner has committed any offence, makes out a case of seduction to commit an offence other than the offence under Section 131 of The Pakistan Penal Code and the petitioner's son could not be made subject Pakistan Air Force Act. 1953 and tried under Section 37(e) of the said Act. He further argued that the petitioner's son is a civilian, therefore, he could :ot be tried under the Provisions of Pakistan Air Force Act. He urged that 1 virtue of section 2
4. Learned Standing Counsel while appearing on behalf of the respondents argued that it is an admitted fact that Squadron Leader Qasim Bhatti went to U.S.A, in Sen ice Aircraft and took one kilogram of heroin on the said Aircraft, therefore, the ingredients of section 37(e) of the Pakistan Air Force Act. 1953. And section 131 of Pakistan Penal Code are attracted. The petitioner's son paid the amount in question to Sqn. Ldr. Qasim Bhatti for the procurement of heroin for U.S.A. He further argued for the purpose to understand the meaning of the words "duty and allegiance" in section 37(e) of the Pakistan Air Force Act. 1953. And section 131 of the PPC. It is necessary to go through the oath and affirmation of the Force Personnels at the time of joining the serv ice and relied upon the following pharase used in the oath and affirmation, "be faithful to Pakistan and its Constitution and bear true allegiance to the President of Pakistan, honestly and faithfully serve in the Pakistan Air Force, and stated that the action of Qasim Bhatti is relatable to. The duties, therefore, the action of the respondents is within the four comers of the law.
11. Learned Standing Counsel also raised preliminary objections regarding the maintainability of the writ petition by virtue of Article 199(3) read with Section 2
5. In rebuttal, learned counsel for the petitioner contended that the action of the respondents is without lawful authority, malice in law and coram-non-judice. Therefore, this Court has the jurisdiction. He has relied upon PLD 1965 Supreme Court 506.
6. It is appropriate at this juncture to reproduce the relevant provisions of the Act and Pakistan Penal Code hereunder:- "S. 2(dd)(i). - Persons not otherwise subject to Air Force law who. Are accused of -
(i) seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government.
12. S. 37(e).- Mutiny -Any person subject to this Act who commits any of the following offences, that is to say:-
(e) endeavours to seduce any person in the Military, Naval or Air Forces of Pakistan from his duty or allegiance to the Government.
13. S. 160.- Remedy against order, finding or sentence of Court martial.- (D Any person subject to this Act who considers himself aggrieved by any order passed by a Court-martial may present a petition to the officer or authority empowered to confirm any finding or sentence of such Court- martial, and the confirming authority may take such steps as may be considered necessary to satisfy itself as to. The correctness, legality of propriety of the order passed or as to the regularity of any proceeding to which the order relates.
(2) Any person subject to this Act who considers himself aggrieved by a finding or sentence of a Court-martial which has ben confirmed may present a petition to the Central Government or the Commandeer-in Chief who may pass such order thereon as it or he thinks fit.
14. S. 161.- Annulment of proceedings.- The Central Government or the Commander-in-Chief may annual the proceedings of any Court-martial on the ground that they are illegal or unjust. S. 162.
15. Bar of appeals.- No Court shall question the correctness, legality or propriety of any proceeding or decision of any Court- martial and no remedy shall lie in respect of any such proceeding or decision save as provided in this Act.
16. S. 162- A Court of Appeals.- Any person to whom a Court-martial has awarded a sentence or hadd under an Islamic Law may. Within sixty days from the date of the sentence, prefer an appeal against the finding and sentence of the Court-martial to a Court of Appeals con-is ting of the Chief of the Air Staff or an officer, being a Muslim, designated by him in this behalf, hereinafter referred to as the Court of Appeals.
17. S. 131 PPC. Abetting mutiny, or attempting to seduce a soldier. sailor or airman from his duty.
18. Whoever abets the committing of mutiny by an officer, soldier, sailor or airman, in the Army. Naval or Air Force of Pakistan, or attempt to seduce any such officer, soldier, sailor, or airman from his allegiance or his duty. Shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and si. J1 also be liable to fine.
7. 1 have gone through the respective contentions of learned counselb for the petitioner as well as respondent No. 3 and perused the record with the assistance of the learned counsel, It is admitted fact that charge has been framed against the petitioner's son. To find out whether the ingredients of the above-mentioned Sections are attracted or not which cannot be determined without recording evidence, this is a matter of evidence to be gone into by the competent forum i.e. Field General Court Martial and not by this Court in exercise of writ jurisdiction. Since the trial has commenced, therefore, the petitioner's son can raise all these points before the said Field General Court Martial on the basis of the grounds being agitated before this Court. The question of mala- fides, if any. Is against a question of fact which can only be determined after recording the evidence. When the charge is defective or does not give full notice to the accused of the allegation/charge then it vitiates the whole trial. In such situation the petitioner's son has a right under the Provisions of the Pakistan Air Force Act to-file appeal before the competent authority. The material question arises out of the proceedings of the parties whether the High Court can take cognizance of the matter or not at this stage. The Supreme Court has laid down a rule in a case reported as A. Habib Ahmad v. M.K.G SCOTT CHRISTIAN AND 5 others (P.L.D. 1992 S.C. 353) and the relevant observations at page 361 are reproduced hereunder:- Undoubtedly one primary question which the High Court had to face immediately on entertaining a case like the present one is: whether, the ordinary course of trial before the Court concerned should be allowed to be deflected through an approach to its special or inherent jurisdiction- the writ jurisdiction under Article 199 of the Constitution is one of them. The basic rule w as laid down by this Court in the well-known case of Ghulam Muhammad V. Muzammal Khan (PLD 1967 SG 317) and it was ruled that if prima facie the offence had been committed justice required that it. Should be enquired into and tried. If the accused are not as a result of the trial found guilt they have a right to be declared as "honourably acquitted by a competent Court . On the other hand if the evidence against the accused discloses a prima facie case then justice clearly requires that the trial should proceed according to law". It was also held that the inherent jurisdiction of the High Court is not an alternative jurisdiction or additional jurisdiction. It is only in the interest of justice to redress grievances for which no other procedure is available. The power given by Section 561-A, Cr.P.C., it was held can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural Statute. "Undoubtedly, the case of Ghulam Muhammad had come before the Supreme Court through an interruption by the High Court under Section 561- A. Cr.P.C. The order of the High Court was set aside and it was directed that the criminal cases were to proceed before the Court concerned in accordance with the normal law.
19. The aforesaid view and principle was reiterated by the Supreme Court in other cases as well, which came before it through the jurisdiction of the High Court other than Section 561-A. Cr.P.C. They included revisional and writ jurisdictions. See Abdur Rehman's Bajwa v. Sultan and 9 others (PLD 1981 SC 522) and Abdul Aleem v. Special Judge (Customs), Lahore (1982 SCMR 731. The case of Abdul Aleem had arisen out of a similar case. A learned Special Judge/Customs notwithstanding the legal objections raised from the accused side with regard to the competency of the criminal proceedings before him formally charged the accused. A criminal revision filed by him having been dismissed he sought relief for quashment of the criminal case through a Writ Petition and the same had to be dismissed mainly on the ground that the High Court would not in its discretionary jurisdiction short circuit the normal procedure of trial as provided by law". This Court refused to grant leave to appeal. It was observed as follows:- We are of the view that the approach of the learned Single Judge in the High Court in refusing to deflect the normal course of a criminal case through exercise of writ jurisdiction is not only salutary but also in accord with the principles laid down by this Court in Ghulam Muhammad v. Muzammal Khan and 4 others (PLD 1967 SC 317). Although the case dealt with therein...."
20. In a very recent case which had arisen out of the same law relating to Offences in Respect of Banks (Special Courts) this Court again emphasized the same principle. See Muhammad Aslam v. The State (1991 SCMR 600 para 26).
21. In view of the above-mentioned dictum laid down by the Supreme Court of Pakistan the contention of the petitioner's counsel to interfere by this Court at this stage has no force.
22. The petitioner's son has alternative remedy under the provisions of the Pakistan Air Force Act, therefore, writ petition is not maintainable as held by the Supreme Court of Pakistan in a case reported as Ch. Muhammad Ismael. v. Fazalzda, Civil Judge Lahore (P.L.D 1996 S.C. 246). And relevant observation is reproduced hereunder:- It is also note worths -that the jurisdiction conferred on the High Court under Articles 199 and 203 of the Constitution is of extraordinary nature and is. Therefore, to be exercised sparingly. The High Court has to be specially conscious in exercise of its Constitutional jurisdiction when other adequate remedy is available to the party invoking that jurisdiction.
23. Mrs. Shahida Zaheer Abbasi challenged the proceedings of the Field General Court Martial on the touch-stone of the fundamental rights and the proceedings were taken in violation of the Provisions of the Pakistan Arms' Act . The petitions were dismissed by the majority judgment reported as Mrs. Shahida Zaheer Abbasi and 4 others v. President of Pakistan (P.L.D 1996 S.C. 632).
24. The conviction and sentence awarded by the Military Court were challenged by Sabur Rehman's and the appeals were dismissed by majority judgment reported as Sabur Rehman's and another v.
25. Government of Sindh and three others (P.L.D.1996 S.C. 801).
26. M. K. Khandekar challenged the sentence awarded to him under Section 37 of the Air Force Act.
27. 1953 but the learned Division Bench of the Lahore High Court refused to exercise discretion in favour of him and the writ petition was dismissed reported as M. K. Khandekar and others v. Pakistan In view of the above-mentioned circumstances the writ petition is not maintainable at this stage as the petitioner has alternative remedy to challenge the same before the higher forum provided under the Act. Even otherwise pleas raised by the petitioner cannot be decided without recording the evidence.
28. For the foregoing reasons this writ petition has no merit and the same is dismissed in limine.